RGV Petroleum Inc. and Najet Abi - Order, March 26, 2003

Order, March 26, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 19 and 71 of
the New York State Environmental Conservation Law ("ECL") and Part 230
of Title 6 the Official Compilation of Codes, Rules and Regulations of
the State of New York ("NYCRR").

- by -

RGV PETROLEUM INC., and NAJET ABI

Respondents.

ORDER

Case No. R1-1000-02-02

WHEREAS:

Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Staff of the New York State Department of Environmental Conservation (DEC Staff) duly served a Notice of Hearing and Complaint upon the Respondents, RGV Petroleum Inc and Najet Abi ("Respondents"), by certified mail.

The Notice of Hearing and Complaint stated that a pre-hearing conference was scheduled to take place on Wednesday, June 26, 2002 at 11:00 a.m., at Regional Headquarters, SUNY Campus, Loop Road, Bldg 40, Stony Brook, New York 11790. The notice included a statement that, pursuant to 6 NYCRR 622.15, failure to timely answer, failure to attend a hearing, or failure to attend a pre-hearing conference would result in a default under 6 NYCRR 622.15 and a waiver of Respondents' right to a hearing.

The affidavit of DEC Staff member William Peek states that the Respondents were served by placing a true and correct copy of the Notice of Hearing and Complaint in a secure postpaid wrapper addressed to the Respondents and mailed to Respondents by certified mail, return receipt requested. The associated return receipt indicates that the Notice of Hearing and Complaint were received on May 23, 2002.

In the Complaint dated May 21, 2002, DEC Staff alleged three causes of action against Respondents for violations alleged to have occurred at a gasoline dispensing site under the control of the Respondents located at 495 Union Avenue, Westbury, New York. Specifically, the complaint alleged that the Respondents: (1) failed to ensure the proper operation of stage II vapor collection and control systems in violation of 6 NYCRR 230.2(f) and (g); (2) failed to keep an air contamination source in a satisfactory state of maintenance and repair in violation of 6 NYCRR 200.7; and (3) failed to remove from service dispensers with defective stage II components in violation of 6 NYCRR 230.2(g)(2).

Staff documents by affirmation of Anthony A. London, Esq. that:

Respondent failed to serve on the Department an answer within 20 days of its receipt of the notice of hearing and complaint or in an otherwise timely manner;

Respondents failed to appear at the pre-hearing conference; and

the penalty imposed is appropriate based on the violation and the duration of the violation; and

Failure to answer a complaint and appear at the scheduled pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR 622.15. Accordingly, Department Staff's allegations against Respondents in its complaint are deemed to have been admitted by the Respondents.

A copy of the notice of motion and supporting papers seeking the judgment by default were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge (ALJ) P. Nicholas Garlick. A copy of the ALJ's Default Summary Report is attached. I adopt the ALJ's report.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

Respondents are found to have violated 6 NYCRR 230.2(f) and (g), 6 NYCRR 200.7 and 6 NYCRR 230.2(g)(2) and are determined, pursuant to 6 NYCRR 622.15, to be in default and to have waived their rights to a hearing in this proceeding.

Respondents RGV Petroleum Inc. and Najet Abi shall be jointly and severally liable and shall pay a civil penalty of Nine Thousand ($9,000.00) dollars within 30 days of service of this Order on the Respondent. Payment of this penalty shall be by cashier's check, certified check or Money Order drawn to the order of "NYSDEC" and delivered to: Department's Region 1 Director, NYS DEC Regional Headquarters, SUNY Campus, Loop Road, Building 40, Stony Brook, NY 11790.

Respondents shall immediately comply with Article 19 of the ECL and Part 230 of 6 NYCRR by removing from service, locking and sealing all dispensers with defective stage II components until such time as the equipment is fully repaired and proof of such repair is submitted to the Department.

All communications from the Respondents to the Department concerning this order shall be made to the Department's Region 1 Director, NYS DEC Regional Headquarters, SUNY Campus, Loop Road, Building 40, Stony Brook, NY 11790.

The provisions, terms and conditions of this order shall bind the Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

the Alleged Violation of Article 19 and 71 of
the New York State Environmental Conservation Law ("ECL") and Part 230 of Title 6
the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR").

-- By --

RGV PETROLEUM INC. and NAJET ABI

Respondents.

SUMMARY REPORT

Case No. D1-1000-02-02

PROCEEDINGS

By a Complaint dated May 21, 2002, staff of the Department of Environmental Conservation ("DEC Staff") alleged three causes of action against RGV Petroleum Inc. and Najet Abi ("Respondents") for violations alleged to have occurred at a gasoline dispensing site under the control of the Respondents located at 495 Union Avenue, Westbury, New York. Specifically, the complaint alleged that the Respondents: (1) failed to ensure the proper operation of stage II vapor collection and control systems in violation of 6 NYCRR 230.2(f) and (g); (2) failed to keep an air contamination source in a satisfactory state of maintenance and repair in violation of 6 NYCRR 200.7; and (3) failed to remove from service dispensers with defective stage II components in violation of 6 NYCRR 230.2(g)(2).

By notice of motion dated February 28, 2003, DEC Staff sought a judgment by default against the Respondents concerning alleged violations of Article 19 of the Environmental Conservation Law (ECL) and associated implementing regulations. In support of the motion, DEC Staff submitted an affirmation of DEC Staff Attorney Anthony A. London, a proposed Order, and an affidavit of service on May 21, 2002 of the Notice of Hearing and Complaint on the Respondents, by DEC Staff member William Peek. The Notice of Hearing and Complaint were received at the Respondents' place of business on May 23, 2002 and signed for by Ali Ari (U.S.P.S. Article Number 7099 3400 0009 0789 7413).

To date, the Respondents have failed to serve an Answer or otherwise move, although the time to do so expired on or about June 13, 2002.

The Notice of Motion for Default Judgment and supporting papers were mailed to the Respondents on or about February 28, 2003 . Respondents have not opposed the motion.

DEFAULT PROCEDURES

Section 622.15, "Default Procedures" provides, in pertinent part: (b) The motion for a default judgment .... must contain: (1) Proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding; (2) Proof of the respondent's failure to appear or failure to file a timely answer; and (3) A proposed order."

The following Findings are based upon the papers submitted, as identified above.

FINDINGS OF FACT

On or about May 23, 2002, DEC Staff served a Notice of Hearing and Complaint on Respondents, RGV Petroleum Inc. and Najet Abi. The time to Answer or otherwise move expired on or about June 13, 2002. No Answer has been served to date.

Staff served the motion for default judgment and supporting papers on Respondents on or about February 28, 2003. Respondents have not opposed said motion. The time to serve papers in opposition expired on or about March 7, 2003.

The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

CONCLUSION

The motion for default judgment should be granted. This Default Summary Report and Staff's proposed Order (attached hereto) are referred to the Commissioner for final determination.